Judge Bruce G. Iwasaki, Case 22STCV20846 2023-02-16 Tentative Ruling

Tentative Ruling: The motion for summary judgment is granted on the Complaint and Cross-complaint.

Background and procedural history

Plaintiffs Jeron Green (Green) and Tinne Smith sued Cliff Schneider (Schneider) for legal malpractice, negligence, and breach of contract. The underlying suit was for Schneider’s representation in case number BV033404, which was an appeal from an unlawful detainer action (case number 19LBUD02947). The Complaint alleges that Schneider failed to “use his legal skill and due diligence,” which included the timely filing of “Case Information, Proof of Service, Motion to recall Remittal, notice to filed [sic] other important Appellant request or adherence to Appeals Court Notice.” According to Plaintiffs, this “culminate[d] in a default judgment or decision at the Appeals Court.”

On August 15, 2022, Plaintiff Tinne Smith was dismissed from the case. No proofs of service were filed with the Court.

On September 27, 2022, Schneider filed an Answer and a Cross-complaint for breach of contract alleging that Green owed him $2,200 in unpaid legal fees. On November 2, default was entered against Green on the Cross-complaint.

Schneider now moves for summary judgment on the Complaint and Cross-complaint. No opposition was filed.

“The party moving for summary judgment bears the burden of persuasion that there is no triable issue of material fact and that he is entitled to judgment as a matter of law.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) A triable issue of material fact exists if the evidence would allow a reasonable trier of fact to find the underlying fact in favor of the party opposing the motion in accordance with the applicable standard of proof. (Ibid.)

When a plaintiff or cross-complainant seeks summary judgment or adjudication, he must show “that there is no defense to a cause of action if [he or she] has proved each element of the cause of action entitling [him] to judgment on the action.” (Code Civ. Proc., § 437c, subd. (p)(1). Once the plaintiff meets this burden, “the burden shifts to the defendant…to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Ibid.)

The elements of a cause of action for professional negligence are “(1) the existence of the duty of the professional to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3) a causal connection between the negligent conduct and the resulting injury; and (4) actual loss or damage resulting from the professional negligence.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) “An attorney, by accepting employment to give legal advice or render legal services, impliedly agrees to use ordinary judgment, care, skill, and diligence in the performance of the tasks he or she undertakes.” (Nicholas v. Keller (1993) 15 Cal.App.4th 1672, 1682.)

“In a legal malpractice claim, the method for proving the element of causation has been likened to a ‘trial within a trial’ or a ‘case within a case.’ [Citations.] ‘The case-within-a-case or trial-within-a-trial approach applied in legal malpractice cases [is] an objective approach to decide what should have been the result in the underlying proceeding or matter. [Citation.]” (Ambriz v. Kelegian (2007) 146 Cal.App.4th 1519, 1531.)

Here, Schneider’s evidence shows that Green hired him for an appeal in case number BV033404. (Undisputed Material Fact (UMF) 3.) That appeal was from an underlying unlawful detainer case, 19LBUD02947. (Schneider Decl., Ex. 5.) Notably, prior to the appeal and in the unlawful detainer action, Green entered into a stipulated judgment. (Schneider Decl., Ex. 7.) Thus, the appeal for which Plaintiffs retained Schneider was only as to appellant/Plaintiff Tinne Smith, who has since dismissed herself from this case. In other words, it is questionable whether Green has standing for legal malpractice here given that Schneider’s work only pertained to Smith’s contentions of error in the unlawful detainer case.

Nevertheless, even assuming Green has standing, Schneider’s undisputed evidence does not show any negligence or breach as a matter of law. Schneider frames the Complaint as seven instances of misconduct, i.e., failures to: meet deadlines, communicate, file “case information,” file “proof of service,” file “motion to recall remittal,” file “proper response base[d] on Notice from the California Appeals Court,” and the ultimate failure which caused the case to “culminate in a default judgment.” Schneider provides evidence that he timely filed the requisite appellate pleadings (UMF 17-18), that he was in constant communication with Green throughout the appeal (UMF 29-30), and that a “case information statement” was not required as the appeal was already underway when he substituted in (UMF 15-16.) Further, Schneider argues that it is unclear what “proof of service” is required, that he had no duty to file a motion to recall remittitur because Green terminated the representation prior to the remittitur being issued, and the appeal was decided on the merits (and not a default). (UMF 21, 25; Schneider Decl., Ex. 6.)

Finally, even if there was any legal misconduct, because Green stipulated to the judgment in the unlawful detainer action, he cannot show that a different result would have occurred. (UMF 26.) The evidence is sufficient to show that Green cannot establish breach or causation with respect to Schneider’s representation. Green’s remaining causes of action for negligence and breach of contract similarly fail.[1]

Since Schneider has shown that there are no triable issues of fact as to the legal malpractice and negligence claims, the burden shifts to Green to establish any disputed fact. As the motion is unopposed, Green has not met his burden. Accordingly, the Court grants Schneider’s motion for summary judgment on the Complaint Green filed against him.

“A cause of action for breach of contract requires proof of the following elements: (1) existence of the contract; (2) plaintiff's performance or excuse for nonperformance; (3) defendant’s breach; and (4) damages to plaintiff as a result of the breach.” (CDF Firefighters v. Maldonado¿(2008) 158 Cal.App.4th 1226, 1239.)

Here, Green’s failure to answer the Cross-complaint “admits the well-pleaded allegations of the [cross] complaint, and no further proof of liability is required.” (Carlsen v. Koivumaki (2014) 227 Cal.App.4th 879, 883-884, original italics.) Thus, the only issue is whether Schneider sufficiently establishes damages.

Here, Schneider avers that he entered into a “written fee agreement” with Green for legal services. (Schneider Decl., ¶ 4.) He further alleges that in April 2021, Green and Schneider entered into an oral contract for Schneider to file a motion to vacate an order deeming admissions admitted against Green in case number 19LBCV00255 for $1000. (Id. at ¶ 6.) Green reportedly did not pay any of the $1000. Schneider avers that Green has paid a total of $3800 toward a total $6,000 in fees incurred. (Id. at ¶¶ 7-8.) Thus, the evidence is sufficient to establish that Schneider is entitled to a total of $2,200 for legal services rendered to Green. Schneider’s motion for summary judgment in his cross-complaint against Green is granted.

The Court grants Schneider summary adjudication against Green in this amount. Schneider shall submit within 20 days a form of judgment in favor of Schneider in Green’s malpractice suit, and in favor of Schneider, and against Green, for breach of contract, in the sum of $2,200.

[1] As to breach of contract, Green’s Complaint does not allege his performance or excuse for performance. (Hansra v. Superior Court (1992) 7 Cal.App.4th 630, 634 [“a motion for summary judgment necessarily tests the sufficiency of the complaint”].)

Department 58

Background and procedural history